Author
The Asylum Act provides for a definition of ‘first country of asylum’ that is in line with Article 35 of the recast Asylum Procedures Directive,[1] and that attempts to merge the criteria listed in Article 38(1) of the Directive.[2] Without prejudice to challenges in clarity resulting from the merger, the current definition seems to exclude formal recognition of refugee status or sufficient protection in accordance to the Refugee Convention as stand-alone criteria to apply the concept as it also requires that:
- Life and liberty are not threatened;
- The principle of non-refoulement in accordance with the Refugee Convention is respected;
- The prohibition of the right to freedom from torture and cruel, inhuman or degrading treatment is respected.
The ‘first country of asylum’ concept is included among the inadmissibility grounds enshrined in the Asylum Act.[3]
The number of inadmissibility decisions on first country of asylum grounds is generally limited. According to SEF, there were no such decisions in 2022.
In those limited cases, the analysis conducted by SEF into the requirements of the concept generally focused on the legal status of the applicant, failing to adequately assess security risks in the first country of asylum alleged by the applicant.
According to the information available to CPR, case law regarding the interpretation of the concept is highly limited but includes a ruling from a second-instance Administrative Court focusing on the definition of ‘sufficient protection’. According to the court’s interpretation of the provision enshrined in the Asylum Act, such protection should be interpreted to encompass the principle of non–refoulement in accordance with the Refugee Convention but also refoulement where a civilian’s life or person is at risk by reason of indiscriminate violence in situations of armed conflict.[4]
However, as stressed by TAC Lisbon in a ruling from November 2017, the formal recognition of refugee status is not per se sufficient to qualify a third country as a first country of asylum in the absence of a meaningful assessment of possible risks to the security of the applicant in that country.[5]
[1] Article 2(1)(z) Asylum Act.
[2] Indeed, certain elements of the definition of the “safe third country” such as that contained in Article 38(1)(b) of the recast Asylum Procedures are not included.
[3] Article 19-A(1)(c) Asylum Act.
[4] TAC Lisbon, Decision 1791/15.0BESLB, 29 September 2015, unpublished; TCA South, Decision 12873/16, 11 February 2016, available at: http://bit.ly/2zUrEVt on Brazil as a first country of asylum for a Syrian asylum seeker.
[5] TAC Lisbon, Decision 2163/17.7BESLB, 30 November 2017, unpublished. Another judgement from 2019, considered that episodes of robbery in the country of asylum were “personal circumstances” that did not amount to “a situation of indiscriminate violence”. TAC Lisbon, Decision 271/19.9BELSB, 13 September 2019, unpublished.